Case: 1:24-cv-11870 Document #: 13-1 Filed: 12/15/24 Page 1 of 20 PageID #:103

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF
ILLINOIS EASTERN DIVISION

Fanjiajia Jin,
Case No. 1:24-cv-11870
Plaintiff,

v. Judge: Honorable Steven C. Seeger

THE PARTNERSHIPS and

UNINCORPORATED ASSOCIATIONS
IDENTIFIED ON SCHEDULE A,

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EX PARTE MOTION FOR

ENTRY OF A TEMPORARY RESTRAINING ORDER, INCLUDING A
TEMPORARY INJUNCTION, A TEMPORARY ASSET RESTRAINT, AN ORDER
AUTHORIZING BIFURCATED AND ALTERNATIVE SERVICE, AND LIMITED
EXPEDITED DISCOVERY

/s/Lance Liu
Lance Y. Liu, Esq.
Lliu@dragonsunlaw.com
Bar No. 3002946
Dragon Sun Law Firm, P.C.
148 East Ave., Unit 1F
Fairfield CT 06851
Phone: 203-706-9536
Lliu@dragonsunlaw.com
Attorney for Plaintiff

Dr. Sarah Ryan, Esq.

15 Minuteman Circle
Southbury, CT 06488
(325)226-0596
DrSRyanLaw@Gmail.com
(Not a Member of the Bar)
Attorney for Plaintiff

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii

I. INTRODUCTION AND SUMMARY OF ARGUMENT ................................................. 1

II. STATEMENT OF FACTS ................................................................................................. 2

A. Plaintiff’s Patent and Products ............................................................................................ 2

B. Defendants’ Unlawful Activities ........................................................................................ 2

III. ARGUMENT ...................................................................................................................... 4

A. Standard for Temporary Restraining Order and Preliminary Injunction ............................ 5

B. Plaintiff Will Likely Succeed on the Merits ....................................................................... 6

C. There Is No Adequate Remedy at Law, and Plaintiff Will Suffer Irreparable Harm in the
Absence of Preliminary Relief ............................................................................................ 8

D. The Balancing of Harms Tips Decidedly in Plaintiff’s Favor, and the Public Interest Is
Served by Entry of the Injunction ..................................................................................... 10

IV. THE EQUITABLE RELIEF SOUGHT IS APPROPRIATE ........................................... 11

A. A Temporary Restraining Order Immediately Enjoining Defendants’ Unauthorized and

Unlawful Use of the D’877 Design Patent Is Appropriate and Needed ........................... 12

B. Preventing the Fraudulent Transfer of Assets Is Appropriate........................................... 12

C. Plaintiff Is Entitled to an Order Authorizing Bifurcated and Alternative Service of

Process by Electronic Means ............................................................................................ 13

D. Plaintiff Is Entitled to Expedited Discovery ..................................................................... 15

V. A BOND SHOULD SECURE THE INJUNCTIVE RELIEF .......................................... 15

VI. CONCLUSION ................................................................................................................. 16

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TABLE OF AUTHORITIES
Cases
Amini Innovation Corp. v. Anthony California, Inc., 211 F. App’x 988, 2007 WL 43262, at *2
(Fed. Cir. Jan. 8, 2007) ....................................................................................................... 6
Animale Grp. Inc. v. Sunny’s Perfume Inc., 256 F. App’x 707 (5th Cir. 2007) ........................... 13
Apple Inc. v. Samsung Elecs. Co., 735 F.3d 1352 (Fed. Cir. 2013)................................................ 9
Aria Diagnostics, Inc. v. Sequenom, Inc., 726 F.3d 1296 (Fed. Cir. 2013) .................................... 8
Canon Computer Sys., Inc. v. Nu-Kote Int'l, Inc., 134 F.3d 1085 (Fed. Cir. 1998)........................ 7
Charter Nat’l Bank & Trust v. Charter One Fin., Inc., No. 1:01-cv-00905, 2001 WL 527404, at
*1 (N.D. Ill. May 15, 2001) ................................................................................................ 6
Christian Dior Couture, S.A. v. Lei Liu et al., 2015 U.S. Dist. 2017 WL 681737, at*6 (N.D. Ill.
Nov. 17, 2015) .................................................................................................................... 5
Coach, Inc., et al v. Does 1-100, No. 12-cv-8963 (N.D. Ill. Nov. 15, 2012) ............................... 11
Columbia Pictures Indus., Inc. v. Jasso, 927 F. Supp. 1075 (N.D. Ill. 1996) ................................ 4
CSC Holdings, Inc. v. Redisi, 309 F.3d 988 (7th Cir. 2002)......................................................... 13
Deckers Outdoor Corporation v. The Partnerships, et al., No. 15-cv-3249 (N.D. Ill. April 4,
2015) ................................................................................................................................. 15
Flava Works, Inc. v. Does 1-26, 2013 WL 1751468, at *7 (N.D. Ill. Apr. 19, 2013) .................. 14
KeyStone Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F.2d 1444 (Fed. Cir. 1993) ................. 6
L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117 (Fed. Cir. 1992) ..................................... 7
Luminara Worldwide, LLC v. Liown Elecs. Co. Ltd., 814 F.3d 1343 (Fed. Cir. 2016).................. 8
NBA Properties, Inc. v. HANWJH, 46 F 4th 614 (7th Cir. 2022) ................................................... 5
NBA Properties, Inc. v. Partnerships & Unincorporated Associations Identified in Schedule "A",
549 F. Supp. 3d 790 (N.D. Ill. 2021) ................................................................................ 13
Nike, Inc. v. Fujian Bestwinn Industry Co., Ltd., 166 F.Supp.3d 1177 (D. Nev. 2016) ................. 9
O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., No. 04-cv-0032, 2007 WL 869576, at *2
(E.D. Tex. Mar. 21, 2007)................................................................................................. 10
Oakley, Inc. v. Does 1-100, No. 12-cv-9864 (N.D. Ill. Dec. 14, 2012) (Dow, J.) ........................ 11
Oakley, Inc. v. Int'l Tropic–Cal, Inc., 923 F.2d 167 (Fed. Cir. 1991) ............................................ 6
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) ........................................................... 15
Otter Prods. v. Anke Group Indus. Ltd., 13-cv- 00029, 2013 WL 5910882, at *2 (D. Nev. Jan. 8,
2013) ................................................................................................................................... 8
PCT Int’l Inc. v. Holland Elecs. LLC, No. CV-12-01797-PHX-JAT, 2015 WL 5210628, at *23-
24 (D. Ariz. Sept. 8, 2015) .................................................................................................. 9
Rathmann Grp. v. Tanenbaum, 889 F.2d 787 (8th Cir. 1989) ...................................................... 15

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Reebok Int’l Ltd. v. J. Baker, Inc., 32 F.3d 1552 (Fed. Cir. 1994) ................................................. 9
Reebok Int'l Ltd. v. Marnatech Enters., Inc., 970 F.2d 552 (9th Cir. 1992) ................................... 13
Robert Bosch LLC v. Pylon Manufacturing Corp., 659 F.3d 1142 (Fed. Cir. 2011) ................ 8,10
Tory Burch LLC v. Zhong Feng, et al., No. 12-cv-9066 (N.D. Ill. Nov. 15, 2012) (Bucklo, J.) .. 11
Tuf-Tite, Inc. v. Fed. Package Networks, Inc., No. 14-cv-2060, 2014 WL 6613116, at *8 (N.D.
Ill. Nov. 21, 2014) ............................................................................................................... 9
Ty, Inc. v. The Jones Group, Inc., 237 F.3d 891 (7th Cir. 2001)............................................... 5, 10
Vance v. Rumsfeld, No. 06-cv-06964, 2007 WL 4557812, at *6 (N.D. Ill. Dec. 21, 2007) ............ 15
Virtual Studios, Inc. v. Beaulieu Grp., LLC, 987 F. Supp. 2d 769 (E.D. Tenn. 2013) ................. 11
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ........................................................ 8

Statutes

28 U.S.C. § 1331 ............................................................................................................................. 4

28 U.S.C. § 1391(c)(3) .................................................................................................................... 4

28 U.S.C. §§ 1338(a) ...................................................................................................................... 4

Fed. R. Civ. P. 26(b)(2) ................................................................................................................. 15

Fed. R. Civ. P. 4(f)(3) ................................................................................................................... 13

Fed. R. Civ. P. 65(b) ........................................................................................................................ 4

Patent Act, 35 U.S.C. § 101 et seq. ................................................................................................. 4

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MEMORANDUM OF LAW

I. INTRODUCTION AND SUMMARY OF ARGUMENT

Plaintiff Fanjiajia Jin (the “Plaintiff”) is requesting temporary ex parte relief based on

an action asserting design patent infringement against the defendants identified on Schedule A

to the Complaint (collectively, the “Defendants”). As alleged in Plaintiff’s Complaint,

Defendants are advertising, distributing, offering for sale, and selling unauthorized and

unlicensed products (“Infringing Products”), specifically “Sponge Headband,” with the exact

design as that infringe Plaintiff’s United States Design Patent No. D1,018,980 S (“the D’980

Patent”). Defendants have engaged in this unlawful conduct through at least the fully interactive,

e-commerce stores operating under the seller aliases identified in Schedule A to the Complaint

(the “Seller Aliases”).

Defendants run a sophisticated operation and have targeted and made sales to Illinois

residents by setting up and operating e-commerce stores using one or more Seller Aliases

through which Illinois residents can purchase Infringing Products. The e-commerce stores

operating under the Seller Aliases share unique identifiers establishing a logical relationship

between them. Further, Defendants attempt to avoid and mitigate liability by operating under

one or more Seller Aliases to conceal both their identities and the full scope and interworking

of their infringing operations. Plaintiff is forced to file this action to combat Defendants’

Infringement of United States Design Patent No. D1,018,980 S (“the D’980 Patent”), as well as

to protect unknowing consumers from purchasing Infringing Products over the Internet.

Defendants’ ongoing unlawful activities should be restrained, and Plaintiff respectfully requests

that this Court issue ex parte a Temporary Restraining Order.

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II. STATEMENT OF FACTS

A. Plaintiff’s Patent and Products

Plaintiff is the owner of record of United States Design Patent No. D1,018,980 S, entitled

“Sponge Headband,” which was filed on 6 January 2023, and duly issued to Plaintiff on 19

March 2024 (Exhibit A, “the D’980 Design Patent”). Plaintiff granted license(s) to certain e-

commerce stores on Amazon to sell its patented products under the D’980 Patent to consumers

in the United States and those in the State of Illinois.

Plaintiff manufactures, markets, distributes and sells its patented Sponge Headbands

covered by the D’980 Design Patent. The patented design has been the subject of substantial

and continuous marketing and promotion of the patented Sponge Headbands by Plaintiff.

Among the purchasing public, Plaintiff’s patented Sponge Headbands are popular and well

known and feature their distinctive patented design. This design is well-recognized by

consumers.

Plaintiff has and continues to widely market and promote its patented Sponge Headbands

in the industry and to consumers. By way of example, they are sold on the Amazon and

Walmart.com platform. Plaintiff has expended substantial time, money, and other resources in

developing, advertising, and otherwise promoting its patented Sponge Headbands. As a result,

products bearing the patented design are widely recognized and exclusively associated by

consumers, the public, and the trade as being products sourced from Plaintiff.

B. Defendants’ Unlawful Activities

Defendants are importing, offering for sale, and selling infringing Sponge Headbands to

consumers in this Judicial District and throughout the United States (see Schedule A for URL

links to Defendants’ Merchant Storefronts and Infringing Listings).

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Defendants are not, nor have they ever been, authorized distributors or licensees of

Sponge Headbands incorporating Plaintiff’s D’980 Design Patent. Plaintiff has not granted a

license or any other form of permission to Defendants to make, use, sell, or offer for sale the

patented Sponge Headbands disclosed and claimed in the D’980 Design Patent.

Plaintiff’s inspection of the Infringing Products revealed, among other things, that

Defendants slavish copying of that design is likely to cause confusion to an ordinary observer,

such that such a person may buy a Sponge Headband from one of the Defendants thinking it

comes from Plaintiff. This confusion over source may give an ordinary observer or prospective

purchaser the false impression that the products of Defendant come from Plaintiff and are

manufactured to Plaintiff’s quality standards. Therefore, Plaintiff has ensured that products

bearing its patented design are manufactured to the highest quality standards. As such, the

goodwill associated with the patented Sponge Headbands of Plaintiff is valuable and of great

importance to Plaintiff.

Defendants’ knowing, intentional, and deceitful misconduct has resulted in lost profits

to Plaintiff and damaged the inherent value of the D’980 Design Patent and the Sponge

Headband, has impaired Plaintiff’s reputation for providing high-quality products and has

diluted Plaintiff’s brand and the goodwill associated therewith.

Plaintiff’s well-pleaded allegations regarding registration patterns, similarities among

the e-commerce stores operating under the Seller Aliases and the Infringing Products for sale

thereon, and common tactics employed to evade enforcement efforts establish a logical

relationship among the Defendants and that Defendants are interrelated. If Defendants provide

additional credible information regarding their identities, Plaintiff will take appropriate steps to

amend the Complaint.

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III. ARGUMENT

Defendants’ purposeful, intentional, and unlawful conduct is causing and will continue

to cause irreparable harm to Plaintiff’s reputation and the goodwill symbolized by the D’980

Design Patent. Rule 65(b) of the Federal Rules of Civil Procedure provides that the Court may

issue an ex parte TRO where immediate and irreparable injury, loss, or damage will result to the

Plaintiff Patentee before the adverse party or that party's attorney can be heard in opposition.

Fed. R. Civ. P. 65(b). The entry of a TRO is appropriate because it would immediately stop the

Defendants from benefiting from their wrongful infringement of the D’980 Design Patent and

preserve the status quo until a hearing can be held.

In the absence of a TRO without notice, the Defendants can and likely will continue to

register new e-commerce stores under new aliases and move any assets to offshore bank

accounts outside the jurisdiction of this Court. See Declaration of Dr. Sarah Ryan, Esq (“Ryan

Dec.”) at ¶¶ 2-5. Courts have recognized that civil actions against Infringers present special

challenges that justify proceeding on an ex parte basis. See Columbia Pictures Indus., Inc. v.

Jasso, 927 F. Supp. 1075, 1077 (N.D. Ill. 1996) (observing that “proceedings against those who

deliberately traffic in infringing merchandise are often useless if notice is given to the

infringers”). As such, Plaintiff respectfully requests that this Court issue the requested ex parte

TRO in avoidance of any notice to the infringers listed on Schedule A.

This Court has original subject matter jurisdiction over the claims in this action pursuant

to the provisions of the Patent Act, 35 U.S.C. § 101 et seq., 28 U.S.C. §§ 1338(a), and 28 U.S.C.

§ 1331. Venue is proper pursuant to 28 U.S.C. § 1391(c)(3).

This Court may properly exercise personal jurisdiction over Defendants since

Defendants directly target business activities toward consumers in the United States, including

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Illinois and this District, through at least the fully interactive, e-commerce stores operating

under the Seller Aliases. Specifically, Defendants have targeted sales to Illinois residents by

setting up and operating e-commerce stores that target United States consumers using one or

more Seller Aliases, offer shipping to the United States, including Illinois, accept payment in

U.S. Dollars and/or funds from U.S. bank accounts, and, on information and belief, have

offered their Infringing Products for sales to residents of Illinois. See Exhibit B to the

Complaint. NBA Properties, Inc. v. HANWJH, 46 F 4th 614, 624-627 (7th Cir. 2022); see, e.g.,

Christian Dior Couture, S.A. v. Lei Liu et al., 2015 U.S. Dist. 2017 WL 681737, at*6 (N.D.

Ill. Nov. 17, 2015) (personal jurisdiction proper over defendants offering to sell alleged

infringing product to United States residents, including Illinois; no actual sale required). Each

of the Defendants is committing tortious acts in Illinois, is engaging in interstate commerce,

and has wrongfully caused Plaintiff substantial injury in the State of Illinois. And there have

been actual sales of Infringing Products, unlike in Christian Dior Couture, S.A., supra. Ryan

Dec. at ¶ 7.

A. Standard for Temporary Restraining Order and Preliminary Injunction

District Courts within this Circuit hold that the standard for granting a TRO and the

standard for granting a preliminary injunction are identical. See, e.g. Charter Nat’l Bank & Trust

v. Charter One Fin., Inc., No. 01-cv-00905, 2001 WL 527404, at *1 (N.D. Ill. May 15, 2001)

(citation omitted). A party seeking to obtain a preliminary injunction must demonstrate: (1) that

its case has some likelihood of success on the merits; (2) that no adequate remedy at law exists;

and (3) that it will suffer irreparable harm if the injunction is not granted. See Ty, Inc. v. The

Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001).

If the Court is satisfied that these three conditions have been met, then it must consider

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the harm that the nonmoving party will suffer if preliminary relief is granted, balancing such

harm against the irreparable harm the moving party will suffer if relief is denied. Id. Finally, the

Court must consider the potential effect on the public interest (non-parties) in denying or

granting the injunction. Id. The Court then weighs all these factors, “sitting as would a chancellor

in equity,” when it decides whether to grant the injunction. Id., quoting Abbott Labs. v. Mead

Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). This process involves engaging in what the Court

has deemed “the sliding scale approach” – the more likely the plaintiff has demonstrated that it

will succeed on the merits, the less the balance of harms need favor the plaintiff's position. Id.

B. Plaintiff Will Likely Succeed on the Merits

“A design patent protects the non-functional aspects of an ornamental design as seen as

a whole and as shown in the patent.” KeyStone Retaining Wall Sys., Inc. v. Westrock, Inc., 997

F.2d 1444, 1450 (Fed. Cir. 1993). Design patent infringement analysis involves application of

the “ordinary observer” test, which has been articulated as follows: “[If] in the eye of an ordinary

observer, giving such attention as a purchaser usually gives, two designs are substantially the

same, if the resemblance is such as to deceive an ordinary observer, inducing him to purchase

one supposing it to be the other, the first one patented is infringed by the other.” Amini

Innovation Corp. v. Anthony California, Inc., 211 F. App’x 988, 2007 WL 43262, at *2 (Fed.

Cir. Jan. 8, 2007).

Further, design patent infringement requires that the accused design misappropriate the

novel ornamental features of the patented design that distinguish it from the prior art. Oakley,

Inc. v. Int'l Tropic–Cal, Inc., 923 F.2d 167, 169 (Fed. Cir. 1991).

In this case, Defendants make, use, sell, offer for sale, and/or import into the United

States products that infringe the D’980 Design Patent. In the eye of an ordinary observer, the

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design of Defendants’ Infringing Products and the design claimed in the D’980 Design Patent

are substantially the same; indeed, they are virtually identical, as a comparison of the

commercial embodiment of the Sponge Headband of plaintiff with those of Defendant, or as is

apparent in a comparison of the Sponge Headband drawings in the D’980 Design Patent with

the infringing Sponge Headbands sold by Defendants. Examples of Defendants’ infringing

Sponge Headbands are shown in Exhibit B to the Complaint.

The virtually identical appearance reflected above deceives prospective purchasers and

induces them to purchase Defendants’ products supposing they have come from Plaintiff.

Defendants’ Infringing Products misappropriate the novelty of the ornamental design claimed

in the D’980 Design Patent that distinguished Plaintiff’s patented design from the prior art.

Defendants sell, offer for sale, and/or import into the United States for subsequent sale or use

products that infringe directly and/or indirectly the ornamental design claimed in the D’980

Design Patent.

The striking similarity between the design claimed in the D’980 Design Patent and

Defendants’ Infringing Products demonstrate not only Plaintiff’s substantial likelihood of

success on the merits, but also that Defendants have willfully copied Plaintiff’s designs. Indeed,

the commercial appearance of Plaintiff’s Sponge Headband is indistinguishable from the cheap

copies sold by Defendants. L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1127 (Fed.

Cir. 1992) (copying is strong evidence of willful infringement). Thus, Plaintiff has a strong

likelihood of proving that Defendants have infringed the D’980 Design Patent. Accordingly,

Plaintiff is very likely to establish a prima facie case of design patent infringement.

Further, the D’980 Design Patent is likely to withstand any validity challenges. The

D’980 Design Patent is presumed valid. Canon Computer Sys., Inc. v. Nu-Kote Int'l, Inc., 134

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F.3d 1085, 1088 (Fed. Cir. 1998). This presumption applies at every stage of litigation. Canon

Computer Sys., 134 F.3d at 1088. No party has to date challenged the validity of the D’980

Design Patent, further supporting that Plaintiff has a high likelihood of success on the merits

here. Id. (if “the [alleged infringer] fails to identify any persuasive evidence of invalidity, the

very existence of the patent satisfies the patentee’s burden on the validity issue.”).

C. There Is No Adequate Remedy at Law, and Plaintiff Will Suffer Irreparable

Harm in the Absence of Preliminary Relief

In the context of infringement of a design patent, irreparable harm occurs when the

“remedies available at law, such as monetary damages, are inadequate to compensate for [that]

injury.” Robert Bosch LLC v. Pylon Manufacturing Corp., 659 F.3d 1142, 1148 (Fed. Cir.

2011). A plaintiff need only show that irreparable harm is likely in order for an injunction to

be issued. See, e.g., Luminara Worldwide, LLC v. Liown Elecs. Co. Ltd., 814 F.3d 1343, 1352

(Fed. Cir. 2016); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In

this case, in the absence of an injunction, Plaintiff will suffer irreparable harm due to loss of

sales, goodwill and reputation. Defendants are selling their Infringing Products on AMAZON

at a fraction of the price that the Plaintiff charges for its patented version. Such injury is

grounds for an injunction to issue. See, e.g., Aria Diagnostics, Inc. v. Sequenom, Inc., 726 F.3d

1296, 1304 (Fed. Cir. 2013) (“Under [the Court of Appeals for the Federal Circuit’s]

precedent, price erosion, loss of goodwill, damage to reputation, and loss of business

opportunities are all valid grounds for finding irreparable harm.”) (internal quotes and cites

omitted); see also, Otter Prods. v. Anke Group Indus. Ltd., 13-cv- 00029, 2013 WL 5910882,

at *2 (D. Nev. Jan. 8, 2013) (Holding TRO was necessary to prevent “irreparable injury…in

the form of (a) loss of control over its intellectual property rights; (b) loss of consumer

goodwill; and (c) interference with [plaintiff’s] ability to exploit the OTTERBOX … design

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patents.”); see also, Nike, Inc. v. Fujian Bestwinn Industry Co., Ltd., 166 F.Supp.3d 1177,

1178-79 (D. Nev. 2016) (“Absent an ex parte temporary restraining order and seizure order,

Bestwinn’s importation, sale, and/or offers to sell its Flyknit Design Infringements will result

in immediate and irreparable injury to NIKE in the form of loss of control over its valuable

intellectual property rights, loss of consumer goodwill, and interference with NIKE’s ability to

exploit the Flyknit Design Patents.”).

In the absence of an injunction, Defendants’ infringement of the D’980 Design Patent

is likely to continue to cause consumer confusion with Plaintiff’s products, resulting in harm

to Plaintiff’s reputation and loss of associated goodwill. Ryan Dec., at ¶ 6. As the United

States Court of Appeals for the Federal Circuit has held: “[h]arm to reputation resulting from

confusion between an inferior accused product and a patentee’s superior product is a type of

harm that is often not fully compensable by money because the damages caused are

speculative and difficult to measure.” Reebok Int’l Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1558

(Fed. Cir. 1994); see also, Tuf-Tite, Inc. v. Fed. Package Networks, Inc., No. 14-cv-2060, 2014

WL 6613116, at *8 (N.D. Ill. Nov. 21, 2014) (quoting and relying on Reebok in finding

irreparable harm).

A causal nexus exists between Defendants’ infringement and each of the irreparable

harms that Plaintiff is suffering. Apple Inc. v. Samsung Elecs. Co., 735 F.3d 1352, 1364

(Fed. Cir. 2013). Here, Defendants’ infringing use of the patented ornamental design in the

Infringing Products is a substantial, if not the exclusive, reason for consumer demand of the

Infringing Products. See PCT Int’l Inc. v. Holland Elecs. LLC, No. CV-12-01797-PHX-

JAT, 2015 WL 5210628, at *23- 24 (D. Ariz. Sept. 8, 2015), aff’d, No. 2016-1061, 2016

WL 4373941 (Fed. Cir. Aug. 16, 2016) (“The Federal Circuit has explained that when the

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products at issue are “relatively simple,” in the sense that they have a small number of

features, the causal nexus requirement is easier to satisfy because the infringing feature has

a large impact on demand for the products”).

Given that Defendants are individuals and businesses who, upon information and

belief, reside in the People’s Republic of China or other foreign jurisdictions with no real

presence in the United States except through their activity on the AMAZON and

Walmart.com platforms, any monetary judgment is likely uncollectable, unless Defendants’

assets in the U.S. are frozen. See Robert Bosch, LLC v. Pylon Mfg. Corp., 659 F.3d 1142,

1156 (Fed. Cir. 2011) (reversing denial of permanent injunction where the likely availability

of monetary damages was in question, citing O2 Micro Int’l Ltd. v. Beyond Innovation Tech.

Co., No. 04-cv-0032, 2007 WL 869576, at *2 (E.D. Tex. Mar. 21, 2007) where “‘all three

defendants are foreign corporations and that there is little assurance that [plaintiff] could

collect monetary damages’”).

For the reasons stated above, Plaintiff will suffer immediate and irreparable injury,

loss, or damage if an ex parte TRO is not issued in accordance with Federal Rule of Civil

Procedure 65(b)(1). Ryan Dec., ¶ 6.

D. The Balancing of Harms Tips Decidedly in Plaintiff’s Favor, and the Public
Interest Is Served by Entry of the Injunction

As noted above, if the Court is satisfied that Plaintiff has demonstrated: (1) a

likelihood of success on the merits, (2) no adequate remedy at law, and (3) the threat of

irreparable harm if preliminary relief is not granted, then it must next consider the harm that

Defendants will suffer if preliminary relief is granted, balancing such harm against the

irreparable harm Plaintiff will suffer if relief is denied. Ty, Inc., 237 F.3d at 895. The threat

of continued patent infringement, without issuance of an injunction, as well as Plaintiff’s

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loss of exclusivity occasioned by such infringement, support a finding that the balance of

hardships weighs decidedly in favor of awarding injunctive relief. Virtual Studios, Inc. v.

Beaulieu Grp., LLC, 987 F. Supp. 2d 769, 781 (E.D. Tenn. 2013). Defendants are violating

Federal Patent law and the proprietary rights of Plaintiff. Defendants offer nothing to

counterbalance Plaintiff’s irreparable injury.

As Plaintiff has demonstrated, Defendants have been profiting immensely from the sale

of Infringing Products. Thus, the balance of equities tips decisively in Plaintiff’s favor. The

public is currently under the false impression that Defendants are operating their e-commerce

stores with Plaintiff’s approval and endorsement. In this case, the injury to the public is

significant, and the injunctive relief that Plaintiff seeks is specifically intended to remedy that

injury by dispelling the public confusion created by Defendants’ actions. The public has no

interest in allowing Infringing Products into the marketplace, where the seller of genuine goods

cannot police the quality and other features of the Infringing items. As such, equity requires that

Defendants be ordered to cease their unlawful conduct by issuing injunctive relief.

IV. THE EQUITABLE RELIEF SOUGHT IS APPROPRIATE

This type of relief has been found wholly appropriate in similar cases by Courts in this

District. See, e.g., Oakley, Inc. v. Does 1-100, No. 12-cv-9864 (N.D. Ill. Dec. 14, 2012) (Dow,

J.) (granting ex parte application for temporary restraining order including the transfer of

domain names, freezing of Defendants' financial accounts, and service of process by electronic

publication and electronic mail); Tory Burch LLC v. Zhong Feng, et al., No. 12-cv-9066 (N.D.

Ill. Nov. 15, 2012) (Bucklo, J.) (same); Coach, Inc., et al v. Does 1-100, No. 12-cv-8963 (N.D.

Ill. Nov. 15, 2012) (Bucklo, J.) (same).

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A. A Temporary Restraining Order Immediately Enjoining Defendants’

Unauthorized and Unlawful Use of the D’877 Design Patent Is Appropriate
and Needed

Plaintiff requests a temporary injunction requiring the Defendants to immediately cease

all use of the D’980 Design Patent in connection with all e-commerce stores operating under the

Seller Aliases. Such relief is necessary to stop the ongoing harm to the owner of the D’980

Design Patent, harm to the associated goodwill, as well as harm to consumers, and to prevent

the Defendants from continuing to benefit from their unauthorized use of the D’980 Design

Patent. The need for ex parte relief is magnified in today’s global economy where Infringers

can operate anonymously over the Internet. Plaintiff is currently unaware of both the true

identities and locations of the Defendants, as well as other e-commerce stores used to distribute,

sell, and offer to sell Infringing Products. As stated above, many courts have authorized

immediate injunctive relief in similar cases involving the infringing patent design without prior

notice to Defendants.

B. Preventing the Fraudulent Transfer of Assets Is Appropriate

Plaintiff requests an ex parte freezing of Defendants’ assets (bank accounts into which

sales proceeds from Amazon sales flow) so that Plaintiff’s right to an equitable accounting of

Defendants’ profits from sales of Infringing Products is not impaired. Issuing an ex parte

restraint on the accounts will help to assure Defendants’ compliance. If such a restraint is not

granted in this case, Defendants may disregard their responsibilities and fraudulently transfer

financial assets to overseas accounts before a restraint is ordered. Specifically, upon information

and belief, the Defendants in this case hold most of their assets in offshore accounts, making it

easy to hide or dispose of assets, which will render an accounting by Plaintiff meaningless.

Courts have the inherent authority to issue a prejudgment asset restraint when plaintiff’s

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Complaint seeks relief in equity. Animale Grp. Inc. v. Sunny’s Perfume Inc., 256 F. App’x 707,

709 (5th Cir. 2007). The freezing of assets “is appropriate… because Defendants may otherwise

transfer their financial assets to overseas accounts, thereby depriving the Plaintiff of final relief.”

See Reebok Int'l Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 559 (9th Cir. 1992) Further,

“if…the assets in question ... were profits of the [defendants] made by unlawfully stealing [the

plaintiffs’ Products and] services, the freeze is appropriate and may remain in place pending

final disposition of this case.” CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 996 (7th Cir. 2002).

Plaintiff has shown a likelihood of success on the merits, immediate and irreparable harm

suffered because of Defendants’ infringing activities, and that, unless Defendants’ assets are

frozen, Defendants will likely hide or move their ill-gotten funds to offshore bank accounts. In

addition, Plaintiff’s Complaint seeks, among other relief, that Defendants account for and pay

to Plaintiff all profits realized by Defendants by reason of Defendants’ unlawful acts.

Accordingly, asset restraint is proper.

C. Plaintiff Is Entitled to an Order Authorizing Bifurcated and Alternative

Service of Process by Electronic Means
Fed. R. Civ. P. 4(f)(3) governs service on Defendants in the instant matter since, upon

information and belief, they are located in China. See Complaint, at ¶ 14. While Defendants

operate sophisticated commercial businesses, they limited all correspondence to email,

messaging through their respective User Accounts and communications otherwise transmitted

over the Internet. There is no way to contact Defendants directly and their addresses are

unpublished and unknown. Plaintiff therefore respectfully requests that this Court issue an order

permitting Plaintiff to serve each respective Defendant via the following two electronic

methods: 1) registered electronic mail and 2) website publication.

In NBA Properties, Inc., the Court ordered that service could be effected by an

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alternative means (i.e., email) so long as Plaintiff “made a showing as to why alternative service

should be authorized.” NBA Properties, Inc. v. Partnerships & Unincorporated Associations

Identified in Schedule "A", 549 F. Supp. 3d 790, 797 (N.D. Ill. 2021), citing Flava Works, Inc.

v. Does 1-26, 2013 WL 1751468, at *7 (N.D. Ill. Apr. 19, 2013). Specifically, the Northern

District of Illinois District Court has held that “a speedy method of service in this case was

justified to ensure, among other reasons, that the funds gained by the allegedly infringing

conduct would be recoverable.” Id, at 797. Moreover, email would be a more reliable method

of service in this case because “[d]efendant's email address was verified by the sales platform,

while their physical addresses were not.” Id, at 797. The Proposed TRO will require Amazon to

identify the email address of each Defendant.

In the instant matter, Plaintiff proposes using Outlook.com as well as Rmail

(www.rmail.com), an online service that confirms valid proof of authorship, content, and

delivery of an email, as well as the official time and date that the email was sent and received.

While none of the Defendants has disclosed their physical mailing addresses, they normally

have their email verified by Amazon or other platforms in order to conduct online business. Due

to Defendants’ purposeful anonymity and Plaintiff’s inability to ascertain reliable physical

addresses, service by email, with confirmation of delivery by email is most likely to provide

Defendants with proper notice of this action and Plaintiff’s claims. Therefore, Plaintiff

respectfully submits that an order authorizing alternative service benefits all parties and the

Court by ensuring that Defendants receive immediate notice of the pendency of this action

following the lockdown of their financial assets. In that way, the action can move forward

expeditiously.

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D. Plaintiff Is Entitled to Expedited Discovery

The United States Supreme Court has held that “federal courts have the power to order

at their discretion, the discovery of facts necessary to ascertain their competency to entertain the

merits.” Vance v. Rumsfeld, No. 06-cv-06964, 2007 WL 4557812, at *6 (N.D. Ill. Dec. 21, 2007)

(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). Courts have wide

latitude in determining whether to grant a party's request for discovery. Id. (citation omitted).

Further, courts have broad power over discovery and may permit discovery in order to aid in the

identification of unknown defendants. See Fed. R. Civ. P. 26(b)(2).

Plaintiff respectfully requests limited expedited discovery to discover bank and payment

system accounts Defendants use for their Infringing sales operations. The expedited discovery

requested in Plaintiff’s Proposed TRO is limited to including only what is essential to prevent

further irreparable harm. Discovery of these financial accounts so that they can be frozen is

necessary to ensure that these activities will be contained. See, e.g., Deckers Outdoor

Corporation v. The Partnerships, et al., No. 15-cv-3249 (N.D. Ill. April 4, 2015) (unpublished).

Plaintiff’s seizure and asset restraint may have little meaningful effect without the requested

relief. Accordingly, Plaintiff respectfully requests that expedited discovery be granted.

V. A BOND SHOULD SECURE THE INJUNCTIVE RELIEF

The posting of security upon issuance of a TRO or preliminary injunction is vested in

Court’s sound discretion. Rathmann Grp. v. Tanenbaum, 889 F.2d 787, 789 (8th Cir. 1989).

Because of the strong and unequivocal nature of Plaintiff’s evidence of design patent

infringement, Plaintiff respectfully requests this Court require Plaintiff to post a bond of no more

than One Thousand U.S. dollars ($1,000.00).

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VI. CONCLUSION

Defendants’ Infringing operations are irreparably harming Plaintiff’s business, its brand,

and injuring the consuming public. Without entry of the requested relief, Defendants’ sale of

Infringing Products will continue to irreparably harm Plaintiff. Therefore, entry of an ex parte

order is necessary. In view of the foregoing and consistent with previous similar cases, Plaintiff

respectfully requests that this Court enter a Temporary Restraining Order in the form submitted

herewith.

Dated: December 15, 2024 Respectfully submitted,

/s/Lance Liu
Lance Y. Liu, Esq.
Lliu@dragonsunlaw.com
Bar No. 3002946
Dragon Sun Law Firm, P.C.
148 East Ave., Unit 1F
Fairfield CT 06851
Phone: 203-706-9536
Lliu@dragonsunlaw.com
Attorney for Plaintiff

Dr. Sarah Ryan, Esq.

15 Minuteman Circle
Southbury, CT 06488
(325)226-0596
DrSRyanLaw@Gmail.com
(Not a Member of the Bar)
Attorney for Plaintiff

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